DEPARTMENT OF HEALTH AND HUMAN SERVICES HEALTH CARE FINANCING ADMINISTRATION BALTIMORE, MARYLAND and LOCAL 1923, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF HEALTH AND HUMAN

SERVICES

HEALTH CARE FINANCING

ADMINISTRATION

BALTIMORE, MARYLAND

and

LOCAL 1923, AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO

Case No. 90 FSIP 145

DECISION AND ORDER

Local 1923, American Federation of Government Employees,
AFL-CIO (Union), filed a request for assistance with the Federal Service
Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of
the Federal Service Labor-Management Relations Statute (Statute) between it and
the Department of Health and Human Services, Health Care Financing
Administration, Baltimore, Maryland (HCFA or Employer).

After investigation of the request for assistance, the Panel
determined that the impasse should be resolved through an informal conference
between Staff Associate Joseph Schimansky and the parties. If there were no
settlement, Mr. Schimansky was to notify the Panel of the status of the dispute,
including the final offers of the parties and his recommendations for resolving
it. Following consideration of this information, the Panel would take whatever
action it deemed appropriate to resolve the impasse, including the issuance of a
binding decision.

Mr. Schimansky met with the parties October 16 and 17, 1990,
in Baltimore, Maryland, but no agreement was reached on 5 of the 11 contract
articles initially brought before the Panel for resolution. Mr. Schimansky
reported to the Panel on the status of the dispute, and it determined that the
remaining issues would be resolved through final-offer selection on an
article-by-article basis. Under this procedure, the Panel would dispose of all
unresolved matters by issuing a binding decision based upon the final offers of
either party, to the extent they are otherwise lawful, on each of the articles.
Submissions were made pursuant to this procedure and the Panel has now
considered the entire record.

BACKGROUND

The Employer's primary mission is to provide oversight of
Federal medical care programs such as Medicare and Medicaid. The Union
represents approximately 2,500 bargaining-unit employees in the Baltimore and
Washington, D.C., metropolitan areas, who work mainly as technical support
personnel, program analysts, and clerks. The parties' term agreement expired on
April 15, 1990. The impasse arose during negotiations over the parties'
successor collective bargaining agreement.

ISSUES AT IMPASSE

The following articles remain in dispute: (1) Article 8 --
Official Travel; (2) Article 9 -- Health, Safety, and Environment; (3) Article
10 -- Hours of Work and Overtime; (4) Article 26 -- Merit Promotion; and (5)
Article 27 -- Details, Temporary Assignments, and Voluntary Changes. The ensuing
descriptions of the parties' final offers are limited to their main areas of
disagreement within each article.

1. Article 8 -- Official Travel

a. The Union's Position

The Union essentially proposes to change Article 8 of the
expired agreement by adding provisions which would: (1) permit employees
traveling outside the Baltimore/Washington, D.C.,areas who are unable to return
during normal duty hours, i.e., 6 p.m., "due to conditions beyond their
control," to return that evening or the following day and be reimbursed
authorized travel expenses; (2) permit employees required to be in attendance at
a time too early to allow them to travel during the normal duty day to elect to
travel during normal duty hours on the preceding day, or, if the preceding day
is a non-workday, to request to travel on the first workday preceding the day in
question; require the Employer to grant such requests unless "a substantial
operational problem" exists; and limit reimbursement to what employees
would be entitled to had they traveled on the non-workday preceding the day in
question; and (3) require the Employer to pay the travel and per diem expenses
of an escort for those handicapped employees on official travel who need such
assistance.

The first two parts of its proposal are intended to establish
"a fair and equitable procedure in furtherance of Office of Personnel
Management (OPM) guidelines and Comptroller General decisions that travel should
occur during an employee's normal tour of duty." Such wording is necessary
to eliminate current discrepancies in the application of travel policy
throughout the bargaining unit by different supervisors. It would not interfere
with mission requirements, and is identical to wording in the Employer's
Regional Office contract covering approximately 45 percent of the total HCFA
workforce. Finally, its proposal regarding handicapped employees who are
directed to perform official travel is consistent with Comptroller General
decisions and Government rules and regulations, and was previously offered by
the Employer during negotiations.

b. The Employer's Position

With respect to travel during normal duty hours, the Employer
proposes that:

Employees who are unable to arrive at, or return from their
destination prior to 8 p.m. will be reimbursed for authorized travel expenses
provided said inability to arrive or return is due to arduous travel conditions
beyond the employee's control resulting from natural calamity, unavailability of
transportation, or severe weather.

It offers no counterproposal regarding
handicapped employees.

Its proposal would maintain the status quo with regard to
travel by employees outside the regularly scheduled workweek. During the 6 years
that this contract wording has been in existence "there have been very few
instances of problems" involving such travel. The Union, on the other hand,
has provided no evidence that "its proposed changes are needed or
justified." Moreover, although applicable law requires an agency to arrange
travel during the scheduled workweek "to the maximum extent
practicable,(1)'' it leaves to the exclusive discretion of the employing agency
the determination of when such scheduling would be impracticable. A proposal,
therefore, which restricts the Employer's authority in this regard could be an
infringement on its right to assign work.

CONCLUSIONS

We are limited to selecting either party's final offer on
this article, as well as the others before us, to resolve their impasse. Having
considered the evidence and arguments, we conclude that the Employer's position
provides a reasonable basis for settlement. In this regard, the Union has
provided no objective evidence of problems arising under the current policy
which would demonstrate a need to change the status quo. Moreover, those
portions of its proposal which refer to "conditions beyond the employee's
control, "and would require approval of an employee's request to travel
during normal duty hours on the first workday preceding the day during which
attendance is required "unless it presents a substantial operational
problem," respectively, are vague, and could lead to future disputes.
Accordingly, we shall order the adoption of the Employer's final offer on
Article 8.

2. Article 9 -- Health. Safety. and Environment

a. The Union's Position

The most significant portions of the Union's final offer on
this article would require that: (1) the Employer maintain a log of Union
reports of hazardous or unsafe conditions to be made available to the Union upon
request; (2) each worksite facility be inspected twice each calendar year; (3)
the Employer conduct air quality tests on a monthly basis at the Meadows East
Building, and one other HCFA building; notice of the availability of test
results be posted on the bulletin board of the tested buildings within 5 days of
receipt; actual test results be given to the Union prior to posting them; a
standard of 600 parts per million (ppm) of carbon dioxide (CO2) be used as a
measure of overall air quality; the Employer take corrective steps whenever CO2
levels range above 600 ppm in any given HCFA-occupied building, and test CO2
levels in each HCFA-occupied building at least on a monthly basis; and (4) if
the Employer cannot prevent the application of insecticides or other like
chemicals during working hours, appropriate safeguards be taken to prevent
employee exposure; and the Employer provide the Health and Safety Committee with
a list of chemical agents used in the workplace on a quarterly basis.

The Panel should adopt its final offer because of the
"very real and serious problems regarding health and safety" which
have arisen at the Employer's main facility, the Meadows East Building, over the
past 6 years. Employees have complained frequently of "eye inflammation,
allergic conjunctivitis, nose and throat irritation, and occasional
dizziness," and a number have been transferred from the building "due
to environmental health problems." After an investigation of employee
complaints conducted in 1986, the National Institute for Occupational Safety and
Health (NIOSH) concluded that the building would need "a major system
change" to meet American Society of Heating, Refrigeration, and Air
Conditioning Engineers (ASHRAE) standards for indoor air quality. Repairs to the
air handling system were completed in February 1989, but since that time the CO2
level in the building has risen from a monthly average of 475 ppm in December
1988 to 837 ppm in June 1989. Moreover, the air handling system failed five
times in May 1990, and "is now literally in systems failure, part by
part."

To rectify these demonstrated health and safety problems, its
proposal would require the Employer to take corrective steps whenever CO2 levels
range above 600 ppm in any given HCFA-occupied building. This is the standard
recommended by the private contractor currently conducting air quality tests for
the Employer at the Meadows East Building, and is justified given its history of
problems. Its proposal also would require the Employer to post the results of
such tests in a timely manner, which should restore a degree of confidence among
affected employees that the building is safe.

b. The Employer's Position

In addition to some minor differences in wording from the
Union's offer, the Employer essentially proposes that: (1) each worksite
facility be inspected once each calendar year, and (2) the current program of
air quality testing be continued in accordance with General Services
Administration (GSA) indicator levels for indoor air quality. Its final offer
"represents a positive effort to address the health and safety matters
affecting Agency employees, n and balances the concerns of all affected parties.
In this regard, its final offer "demonstrates considerable movement from
the Agency's original negotiating position, n and includes several provisions
proposed by the Union.

CONCLUSIONS

After carefully examining the evidence and arguments provided
by the parties in support of their final offers, we conclude that, on balance,
the Employer's position should be adopted. The parties' primary disagreement
appears to focus on the CO2 indicator level which would be used~to measure the
overall air quality of HCFA-occupied buildings, and trigger corrective steps by
the Employer. The Union would use the 600 ppm standard which is recommended by
the private contractor currently conducting monthly air quality tests at the
Meadows East Building. The Employer, on the other hand, would rely on the
indicator level used by GSA, which currently is ASHRAE's recommended 1,000 ppm
standard. While it is clear that the Meadows East Building has had health and
safety problems in the past, we are nevertheless unpersuaded that a CO2
indicator level which is 400 ppm higher than that used by GSA, and recommended
by ASHRAE, is warranted in the circumstances of this case. We note in this
regard that the results of the July 1989 monthly sampling performed at the
Meadows East Building, which was provided by the Union, showed CO2 levels at
that facility were between 500 and 650 ppm.

Other than at the Meadows East Building, the Union has
provided no evidence of health problems. Its final offer, however, would require
each worksite facility to be inspected at least twice each calendar year, and
that CO2 levels in each HFCA-occupied building be tested at least on a monthly
basis. We believe that the need for such stringent and burdensome requirements
has not been justified on the basis of the evidence presented. After examining
the Employer's entire package, which includes, among other things, annual
inspections of all worksite facilities, and the continuation of the current
monthly indoor air quality testing program at the Meadows East Building, we
shall order its adoption because we believe it provides a reasonable approach to
the protection of the health and safety of HCFA employees.

3. Article 10 -- Hours of Work and Overtime

a. The Union's Position

The Union would change Article 10 of the expired agreement by
adding a credit hours program whereby: (1) employees could earn up to 2 credit
hours per day, provided sufficient work is available and approved by the
supervisor; (2) credit hours could be earned and used in 1/4-hour increments;
(3) the maximum carryover per pay period would be 24 hours; (4) requests to earn
hours normally would be made on the day preceding the one in which they are to
be earned; (5) if credit hours were approved and overtime subsequently made
available, employees could elect to work overtime; and (6) the use of earned
credit hours would be requested by submitting standard SF-71 forms; and credit
hours could be used in lieu of, or together with, approved leave and/or
compensatory time.

The adoption of a credit hours program would permit employees
who cannot participate in the current 5-4-9 option the benefit of working a
flexible schedule. While 30 percent of the bargaining unit currently
participates in the 5-4-9 program, "many employees, especially working
mothers and parents, cannot work" such a schedule because of the fixed
nature of the daily work requirement. The option of giving employees more than
one flexible schedule to choose from "is common in most Federal sector
contracts." Indeed, "most bargaining units within DHHS currently have
such options." The Employer's own data demonstrate that performance and
productivity have increased since the inception of flexible work schedules at
HCFA, and the addition of a credit hours program would further enhance its
operations.

The Employer has been unable to articulate "any adverse
impact, administrative or operational, to the credit hour program, or to having
it as an additional option with the 5-4-9 program." Finally, HCFA and the
Social Security Administration (SSA) are collocated in their headquarters
operations, and the SSA workforce already has a credit hours option, in addition
to the other work schedule options currently available to the HCFA workforce.
Thus, the adoption of its proposal would promote effective and efficient use of
transportation and related conditions of employment by providing
"convergent flexibility" in the work schedules of both organizations.

b. The Employer's Position

The Employer proposes that Article 10 of the expired
agreement be renewed without modification. It specifically opposes the
establishment of a credit hours program. In this regard, bargaining-unit
employees already enjoy several alternative work schedule options "which
have provided employees with sufficient flexibility and convenience in
scheduling their hours of work." These include flexitime, flexitour, and a
5-4-9 compressed workschedule. Moreover, during negotiations "the Union was
unable to present evidence of a need to change or supplement the current
hours-of-work provisions."

CONCLUSIONS

Based on the evidence and arguments presented by the parties
with respect to the credit hours issue, we conclude that the Union's final offer
should serve as the basis for settlement. We are persuaded that, in the
circumstances of this case, the additional flexibility the credit hours program
should provide to those employees currently unable to utilize other
work-schedule options is sufficient reason to order its adoption. In this
regard, there is no evidence in the record to suggest that the introduction of
such a program would reduce productivity, or be administratively burdensome.
Moreover, the Union's proposal includes wording which would permit employees to
earn credit hours only if: (1) there is sufficient work available, and (2)
requests to do so are approved by the supervisor in advance. Thus, it appears to
provide adequate safeguards to ensure that the program would not be abused.
Moreover, we note that the Federal Employees Flexible and Compressed Work
Schedules Act of 1982 provides for the termination of such programs should they
cause an adverse impact on an employer's mission.

4. Article 26 -- Merit Promotion

a. The Union's Position

The Union proposes that: (1) when employees are temporarily
assigned to a higher graded position for a period in excess of 30 days, the
assignment be made via a temporary promotion effective the first day of the
assignment; (2) vacancy announcements be posted weekly for 10 workdays; and (3)
when vacancies occur in the same geographic location with the same title, series
qualification requirements, etc., as that used for a previously-posted vacancy,
candidates from the previous announcement may be referred and need not reapply, but the new vacancy be announced and a new best
qualified (BQ) list established. In addition, the Union would retain wording
from the expired agreement which requires the Employer to post nonbargaining-unit
positions to be filled competitively for which bargaining-unit employees may be
eligible.

The first part of the Union's proposal would change from 45
to 30 the number of days required for an employee temporarily promoted to a
higher graded position to receive pay, effective the first day of the
assignment, commensurate with that position. While it is unclear "why
employees should suffer in a situation where pay is not commensurate with duties
for any period of time," its proposal "represents an incremental
improvement" in an area where the Employer has previously attempted to
rotate employees, or terminate details to higher graded positions, to avoid
paying employees at the higher rate. Moreover, the proposed wording is identical
with a provision in the current SSA-AFGE national agreement covering 48,000
employees.

With respect to the reuse of BQ lists originally compiled as
a result of previous vacancy announcements, its proposal would "correct a
practice particularly irritating to the bargaining unit." The Employer
currently avoids the need to announce new vacancies for job titles which are
prevalent in all components of HCFA by using an already established BQ list.
This puts employees in the awkward position of either applying for all vacancies
for which they qualify, even if they have no intention of accepting the job
should it be offered, or being shut out from bidding on the jobs they really
prefer. The Union proposal would rectify this situation by: (1) allowing
candidates who have applied for a previous vacancy to be referred for a new
vacancy without having to reapply, and (2) requiring management to announce each
vacancy and establish new BQ lists.

b. The Employer's Position

The Employer would delete from the previous agreement the
provision requiring it to post nonbargaining-unit positions to be filled
competitively for which bargaining-unit employees may be eligible. It also
proposes that: (1) when employees are temporarily assigned to a higher graded
position for a period in excess of 45 days, the assignment be made via temporary
promotion effective the first day of the assignment; (2) vacancy announcements
be posted weekly for 5 workdays; and (3) when vacancies occur in the same
Associate Administrator organization with the same title, series qualification
requirements, etc., as that used for a vacancy previously posted, candidates
from the previous announcement could be referred instead of reannouncing the new
vacancy.

With respect to the provision in Article 26 of the expired
agreement concerning the posting of nonbargaining-unit positions, the Employer
contends that under existing case law, this matter is a permissive subject of
bargaining and, thus, negotiable only at its election.(2) The portion of its
final offer requiring 45 days 'performance in a higher graded position before authorizing
payment at the higher rate would merely maintain the status quo which "has adequately served the interests of both the Agency and the
Union over the past 6 years. n Finally, in an attempt to accommodate the Union's
concerns, and balance them with its own needs for administrative efficiency, it
proposes to change the current practice regarding the reuse of BQ lists for new
vacancies by limiting it only to vacancies "within the areas under the
control of the Associate Administrator level or its equivalent."

CONCLUSIONS

Having considered the evidence and arguments concerning the
parties' final offers on this article, we shall order the adoption of the
Union's position, with the exception of the section dealing with the posting of
nonbargaining-unit positions to be filled competitively for which
bargaining-unit employees may be eligible. In this regard, in addressing the
Employer's allegation of nonnegotiability, the Panel is guided by the FLRA's
decision in Commander, Carswell Air Force Base. Texas and American Federation of
Government Employees, 31 FLRA 620 (1988). In that case, the FLRA concluded that
the Panel may apply existing case law to resolve an impasse where a
duty-to-bargain issue arises. We have examined the cases cited by the Employer
in support of its contention that the wording in question concerns a matter
negotiable only at its election.

In our view, the Employer has raised a legitimate
nonnegotiability allegation which should be resolved by the FLRA, and prevents
us from considering that part of the Union's final offer on its merits. Thus, in
accordance with the terms of the final-offer selection procedure being used in
this case, we shall decline to order its adoption as part of our resolution of
the issues.

With respect to the other portions of the article, we believe
that reducing from 45 to 30 the number of 'days of service required before an
employee is entitled to a temporary promotion is fairer to employees temporarily
assigned to higher graded positions, yet still affords the Employer a reasonable
period of time to assess employees' performance at the higher level. Moreover,
no justification has been offered by the Employer for changing the parties'
practice of posting vacancy announcements weekly for 10 workdays. Finally, we
are persuaded that the practice of reusing BQ lists developed'-from previous
vacancy announcements to fill new vacancies should be changed. Limiting the
practice only to when vacancies occur within the areas under the control of the
Associate Administrators, however, does not go far enough. In this regard, the
Union has demonstrated that, on balance, the adverse impact of the practice on
employees seeking promotional opportunities outweighs the additional
administrative burdens that adoption of the Union's proposal would entail.

The Union basically proposes that: (1) employees detailed to
classified positions be given job descriptions, or a written statement of duties
when detailed to an unclassified position, if the assignment is for 30 calendar
days or more; and (2) the Employer be required to follow a procedure when
offering noncompetitive' details to both classified and unclassified positions
whereby: (a) the qualifications necessary to perform the job, and the names of
those employees who possess them, would be listed; (b) qualified employees of
similar grade and occupation within the component where the detail exists would
be canvassed to volunteer for the detail, and selected 'if the same number of
volunteers as vacancies occur; (c) seniority would be the selection criterion if
there were more employees who volunteer than vacancies, unless unusual
circumstances require some other bonafide factor; (d) if there were no
volunteers, the least senior qualified employee would be selected; (e) if there
were fewer volunteers than vacancies, the volunteers would be selected, along
with the necessary number of least senior qualified employees; and ( the
procedure need not be followed when the detail is for the purpose of
accommodating a substantiated medical or health problem, or for an initial
period when the Employer must make a detail to respond to an emergency.

The first part of its proposal "simply mandates a
written record of details and the duties assigned." The second part sets
forth a procedure for offering details to bargaining-unit employees when
competitive procedures are not mandatory. Such a procedure "is currently in
effect in HCFA regions." Its purpose is to ensure "a level playing
field for all employees" in the area of merit promotions by stringently
regulating detail assignments. Such a seniority-based procedure is necessary to
prevent supervisors from rigging "the BQ list mechanism and ultimately
selection" by assigning favored employees to particular details, where they
can acquire experience valuable to them in the pursuit of future promotional
opportunities. Requiring some documentation and a limited canvassing of
volunteers would also "help personnel specialists distinguish real
experience from puffery on candidates' applications."

b. The Employer's Position

The Employer would retain Article 27 of the expired agreement
without change. Thus, on the key issue of a seniority-based procedure for
offering noncompetitive details to both classified and unclassified positions,
it proposes that: (1) "noncompetitive details may be offered on a
rotational basis to qualified employees;" and (2) "the Administration
agrees to continue to assure that details do not compromise the merit promotion
system." The article "has served the parties well over the past 6
years," and is well understood by employees and managers. Moreover, the
Union has offered no concrete evidence of past abuses which would justify the
changes it proposes.

CONCLUSIONS

A careful examination of the evidence and arguments submitted
by the parties in support of their final offers convinces us that the Union's
position provides the more reasonable basis for settlement. In this regard, it
is unclear from the record whether the parties have experienced significant
problems in the past regarding the assignment of noncompetitive details. In any
event, requiring a written record of such details, and adopting a
seniority-based procedure for their assignment, should eliminate the potential
for future abuse by providing an objective means for enabling all qualified
employees to acquire the experience necessary to enhance their future prospects
for promotion. Moreover, by limiting canvassing to employees within the same
component of similar grade and occupation, and carving out exceptions for the
accommodation of employees with medical or health problems, the procedure should
not be unduly burdensome to administer. For these reasons, we shall order
the adoption of the Union's final offer on this article.

ORDER

Pursuant to the authority vested in it by section 7119 of the
Federal Service Labor-Management Relations Statute and because of the failure of
the parties to resolve their dispute during the course of the proceedings
instituted under section 2471.6(a)(2) of the Panel's regulations, the Federal
Service Impasses Panel under section 2471.11(a) of its regulations hereby orders
the following:

1. Article 8 -- Official Travel

The parties shall adopt the Employer's final offer.

2. Article 9 -- Health. Safety. and Environment

The parties shall adopt the Employer's final offer.

3. Article 10 -- Hours of Work and Overtime

The parties shall adopt the Union's final offer.

4. Article 26 -- Merit Promotion

The parties shall adopt the Union's final offer, with the
exception of Section 6.F., which shall be deleted from the article.

2. In this regard, the Employer cites the Federal Labor
Relations Authority's (FLRA) decisions in Antilles Consolidated Education
Association and Antilles Consolidated School System, 22 FLRA 235 (1986) and
National Treasury Employees Union and Department of the Treasury. Internal
Revenue Service, 32 FLRA 544 (1988), among others, in support of its contention.